INTRODUCTION
There is a precise need to distinguish preparation from attempt in a crime, else it would lead to gross miscarriage of justice[1]. In general, preparation for a crime is not subject to punishment, while an attempt to commit a crime is punishable, unless statutory provisions dictate otherwise. The classification of a particular act as either preparatory or an actual attempt to commit a crime lacks a universal rule, as it relies on the specific factual circumstances, which may differ from case to case.
Courts have consistently emphasized that whether an act falls within the realm of preparation or constitutes a genuine attempt relies on the unique details of the case. Nevertheless, certain criteria and tests that help to differentiate between preparation and attempt have been derived from judicial decisions.
TESTS LAID DOWN BY COURTS:
THE PROXIMITY TEST/ LAST STEP TEST/ CLOSELY CONNECT RULE:
This test examines the nearness( proximity) of the accused towards the commission of crime[2]. This test stipulates that an act will be considered an attempt when the person has taken all or almost all steps towards committing a crime but has not achieved the intended outcome. To meet the requirements of an attempt, the act should be reasonably in proximity to the intended crime, not a distant or unrelated action. This test relies on the completion of important preparatory actions that approach the threshold of the actual offence, stopping just short of its full realization.
In the case of State of Maharashtra v. Mohammad Yakub[3], the defendants were charged with attempt to smuggle silver outside the Indian territory as they were arrested at the river bank with silver ingots during midnight. The trial court convicted them for attempting to smuggle silver, but the court of sessions acquitted them. The reason for the same was that, according to the court, unless the silver was actually placed on the boat with the intention to export it, their actions would only amount to preparation and not an actual attempt.
When the matter reached the Supreme Court, it held that an attempt takes in its ambit an act or step beyond preparation. By moving the silver ingots to the place where they could be embarked, such acts stipulate the commission of illegal silver export. Any act after preparation, in order to be criminal is not necessary to be the penultimate act before the actual commission of the crime, and it would amount to an attempt. Hence all the accused were convicted.
THE LOCUS POENITENTIAE TEST:
The locus poenitentiae test examines the possibility where a person might change his guilty mind and surrender the commission of the crime, after the preparation to commit it[4].
This act will not amount to an attempt. In simple terms, if an act or step is taken after preparation but the accused has, by his own will or accord, refrained or desisted from committing the crime, such act would fall within the ambit of preparation only and not an attempt.
In State of Madhya Pradesh v. Narayan Singh[5], the agents of two fertiliser carrying lorries, without a license, were charged under Fertiliser (Movement Control) Order 1973 read with section 3 and 7 of the Essential Commodities Act,1955 for attempting to smuggle fertilisers, which are strict liability offences. At the trial court, the accused were not found guilty on the ground that the prosecution had failed to prove that the accused were attempting to smuggle fertiliser from Madhya Pradesh to Maharashtra and thus acquitted.
The Apex Court differed from the judgement of lower court and stated that it was not the matter of mere preparation. The moment the accused began marching towards Maharashtra after filling the lorry, they attempted the unlawful export of fertilisers and were out of the ambit of the preparation phase.
THE UNEQUIVOCALITY/ UNAMBIGUOUS/ LEAVING NO DOUBT TEST:
The unequivocality test puts forward that an act would qualify as an attempt only, if it unquestionably indicates that the accused had intended the commission of offence. This test relies on the rule the that only when one’s actions clearly reflect his guilty mind, he can be held liable for an attempt. Any ambiguity of reasonable doubt should not arise in such a case. In State v. Parasmal[6], the accused received an order to buy diesel and informed customer to come on the following day. However, on the particular night, the accused were seen mixing the kerosene and diesel and were charged under section 420 read with section 511 of the Indian Penal Code and section 23(c) of the Petroleum Act, 1934.
In the Supreme Court, the accused claimed themselves to be merely in a preparatory stage as they had not sold the diesel to customers. The Apex Court observed that when they had the knowledge that the customer was coming next day, they added kerosene to Diesel in the night so that they were not caught or seen. This clearly manifests how they acted in furtherance of their guilty intention to cheat and dishonestly their property to the customer. Therefore they were guilty of attempting to cheat and dishonest delivery of property under section 420 read with 511 of the Indian Penal code and section 23(c) of the Petroleum Act,1934.
THE IMPOSSIBILITY TEST:
This test asserts that even if circumstances make it impossible to carry out an act, but the offender had the mens rea to commit it, made preparations, and took significant steps towards completing the crime, the impossibility of execution itself does not absolve the attempt from guilt. In such cases, the law still holds the accused accountable and subjects them to punishment.
In Madan Lal v. State of J&K[7], the Hon’ble Supreme Court held that in matters of sexual offences especially of rape, the person who is having the mens rea to commit rape disrobes the women, lies her flat and then tries to have sexual intercourse with her but ejaculates before penetration, the person would be still held guilty for the attempt to commit rape under section 511 of the Indian Penal Code.
THE SOCIAL DANGER TEST:
Under this test, the following factors are determined to distinguish between attempt and preparation:
- a) The gravity of the attempted crime.
- b) The perception of the potential societal harm.
According to the social danger test, a crime cannot be attempted until the offender has done something that has to be punished in order to protect society. The test is founded on the idea that punishment should serve as a deterrent to behaviour that is damaging to society[8]. For instance, A might give a pregnant woman some medications to induce an abortion. However, because the pills are harmless, they do not have an effect. Despite this, X would be considered to have attempted the social danger test because his actions would have alarming effects on society and social ramifications
CONCLUSION
In conclusion, the difference between preparation and attempt in a crime is significant for ensuring a just legal system. While there is no universal rule to precisely define this boundary, courts have developed different tests to navigate the complexities of criminal intent and action. These test help judges and juries to assess the accused’s level of culpability. The application of these tests ensures that individuals are appropriately held accountable for their actions, balancing the need for deterrence with the principles of justice. Ultimately, the determination for an act to be lying under the stage of mere preparation or attempt depends on the factual matrix of each case.
Author(s) Name: Muntazir Hussain (Lloyd Law College)
References:
[1] Om Prakash v. State of Punjab 1962 SCR (2) 254
[2] Attempt And Criminal Conspiracy Under Indian Penal Code, 1860. <https://www.legalserviceindia.com/legal/article-4753-attempt-and-criminal-conspiracy-under-indian-penal-code-1860.html> accessed on 4 October 2023
[3] State of Maharashtra v. Mohd Yakub 1980 SCC (3) 357
[4] Attempt and Test to Differentiate Preparation and Attempt – IPC <https://www.writinglaw.com/what-is-attempt-as-per-ipc/> accessed on 5 October 2023
[5] State of Madhya Pradesh v. Narayan Singh 1989 SCR (3) 549
[6] State v. Parasmal 1969 CriLJ 437
[7] Madan Lal v. State of J&K 1997 (7) SCC 677
[8] Difference between attempt and preparation in IPC <https://blog.ipleaders.in/difference-attempt-preparation-ipc/> accessed on 6 October, 2023
